9911796707
TMI Blog2000 (4) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... me as non-durable and non-returnable. 2. The Department in the review application stated as under : The demand of Rs. 1,62,20,468.15 has been dropped by applying the Supreme Court decision, dated 20-7-1995 in Civil appeal No. 2808 (N)/79. The Honourable Supreme Court has held as under : "The assessee packed his goods in packing material supplied by the buyer or in packing material purchased by him from the market. In respect of the first, there is no dispute that the assessee would not be liable to include the value of the packing material in the value of the goods. However, in so far as the second is concerned, the assessee would be liable to add the value of the packing material in the value of the goods unless it is shown to be durable and returnable. The High Court, however, came to the conclusion relying on the case law that the assessee would be entitled to a deduction in so far as the value of the packing material is concerned and it was not necessary to go into the question whether the packing materials was durable and returnable. This view of the High Court is assailed in the present appeal and we think we must uphold the contention of the Revenue in view of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Therefore, this part of the order also is not legal and proper. 10. The review appeal further claims that although the confirmed amount has been settled under the Kar Vivad Samadhan Scheme, 1998, an appeal can be filed by the department for the amount which has been set aside in terms of proviso to Section 92 of the Finance Act, 1998. 11. The respondent in their cross objection mainly submitted that the department had filed review application on the ground which are not only contrary to the law but are also factually incorrect. That the appeal has been filed in terms of the proviso to Section 92 of the Finance Act, 1998, in respect of the duty demand which has already been dropped by way of the impugned order and when no appeal of the department was pending at the time when the respondent had settled the duty demand confirmed under the KVSS. That, in any case, the proviso to Section 92 of the Finance Act, 1998 has been set aside by the Honourable Delhi High Court as per CBEC Circular dated 8-12-1998. That the said proviso could not have been invoked for the purpose of filing the present appeal when the same was set aside by the Honourable Delhi High Court. That on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchasers which clearly give an evidence that there was an arrangement for return of the gunny bags. Thus, the impugned order, so far as gunny bags is concerned, is proper and correct. 14. They also stated that the appeal filed by the Appellant Commissioner is indeed deplorable since the Appellant Commissioner was himself the designated authority, who had settled this very issue under the KVSS. That it cannot now be left open to the very same officer to re-agitate the issue by taking re-course to belated filing of an appeal, thereby defeating the object of KVSS. That the object of KVSS, as per the Finance Minister's speech in the Parliament, was to reduce litigation in tax disputes. That the appeal filed by the Appellant Commissioner is in defiance of the Legislative intention behind the KVSS, besides being contrary to the settled law. That on this ground also, the appeal of the Appellant Commissioner deserves to be dismissed in limini. 15. Shri R.C. Saxena, Advocate alongwith Shri Y.O. Trivedi, Director and M.R. Dave, Advocate representing the respondent appeared for personal hearing on 4-4-2000 and reiterated the submissions made by them in the appeal memorandum. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of the issue dealt with in the impugned order under the KVSS, the department has filed review appeal in terms of proviso to Section 92 of the Finance Act, 1998 subsequently on 27-1-2000 for the amount which was dropped by the adjudicating authority under the impugned order. Thus it is observed that the present appeal has been filed in respect of duty demand which has already been dropped under the impugned order and when no appeal of the department was pending at the time when the respondent settled the duty demand confirmed, under the KVSS. To appreciate the issue in its proper perspective the proviso to Section 92 of the Finance Act, 1998 is reproduced as under : "No appellate authority shall proceed to decide any issue relating to the disputed chargeable expenditure, disputed chargeable interest, disputed income, disputed wealth, disputed value of gift or tax arrear specified in the declaration and in respect of which an order had been made under Section 90 by the designated authority or the payment of the sum determined under that section : Provided that in case an appeal is filed by a department of the Central Government in respect of such issue relating to the dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as tax arrears under the definition of Section 87 (m) for purpose of settlement of the disputes relating to the departmental appeals. 4. The Government have decided to accept the aforesaid order of the Honourable High Court of Delhi and hence even in respect of cases involving departmental appeals before Commissioner (A), Tribunal/Court etc. the assessee can come forward and file a declaration in the form already prescribed if they wish to avail of the KVS Scheme in respect of these appeals also. 5. .................................................. In the last three months of operations of KVS Scheme, if in any case the assessee has filed a declaration covering his appeal only, he will also have the facility to file another declarations, if he so desires in relation to the amount involved in any of the pending departmental appeals in that case. This declaration which can be filed up to the last date i.e. 31-12-1998, will also be entertained and the disputed amount settled in accordance with the provisions of the Scheme (i.e., paying 50% of the duty amount in dispute)." 22. In this case, the certificate of settlement was issued on 22-3-1999. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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